The Transformative Constitution Read online




  The Transformative Constitution

  A RADICAL BIOGRAPHY IN NINE ACTS

  Gautam Bhatia

  HarperCollins Publishers India

  Contents

  Author’s Note

  Prologue: The Past Is a Foreign Country

  Part One: Equality

  1. Sex Discrimination: Anuj Garg and the Anti-Stereotyping Principle

  2. Equality Before Law: Naz Foundation and Equal Moral Membership

  3. Equality of Opportunity: N.M. Thomas, Group Subordination, and the Directive Principles

  Part Two: Fraternity

  4. Civil Rights: Indian Medical Association and Horizontal Discrimination

  5. Religious Freedom and Group Identity: Saifuddin and the Anti-Exclusion Principle

  6. The Freedom to Work: Peoples Union for Democratic Rights and Forced Labour

  Part Three: Liberty

  7. Privacy beyond the Public/Private Divide: Sareetha and Freedom within the Family

  8. Speech, Association, Personal Liberty, and the State of Exception: Jyoti Chorge v. State of Maharashtra

  9. Privacy and the Criminal Process: Selvi v. State of Karnataka

  Epilogue: ‘Something of Freedom Is Yet to Come’: The Aadhaar Case, Technological Self-Determination and the Future of Transformative Constitutionalism

  Notes

  Index

  Acknowledgements

  About the Book

  About the Author

  Copyright

  Author’s Note

  AS A PRACTISING LAWYER, I was professionally involved with four of the cases discussed in this book: the constitutional challenge to Section 377 of the IPC (Chapter 2), the right to privacy case (Chapter 7), the bail applications of Kabir Kala Manch before the Supreme Court (Chapter 8), and the constitutional challenge to Aadhaar (Epilogue). Readers may like to take my views on these judgements with a healthy dose of scepticism, given that I was an active participant in these cases, and held (and continue to hold) definitive views about them.

  The Supreme Court judgements in the adultery challenge (Chapter 1), the Section 377 challenge (Chapter 2), and the Sabarimala temple entry case (Chapter 5) were delivered after I had finished writing this book. There was no time to integrate them into the body of the chapters. Because of their importance to the argument—and, more broadly, to the project of transformative constitutionalism—I have instead addressed them in brief postscripts to each chapter.

  A version of Chapter 2 was published earlier as ‘Equal moral membership: Naz Foundation and the refashioning of equality under a transformative Constitution’, (2017) 1(2) The Indian Law Review 115 (Publisher: Taylor & Francis); of Chapter 4 as ‘Horizontal Discrimination and Article 15(2) of the Indian Constitution: A Transformative Approach’, (2016) 11(1) The Asian Journal of Comparative Law 87 (Copyright: Cambridge University Press); and of Chapter 5 as ‘Freedom from community: Individual rights, group life, state authority, and religious freedom under the Indian Constitution’, (2016) 5(3) Global Constitutionalism 351 (Copyright: Cambridge University Press). These have been slightly edited to fit the scheme of this book, and are reprinted with the permission of the publishers.

  Prologue

  The Past Is a Foreign Country

  On 26th January 1950, India will be an independent country.

  B.R. Ambedkar, in his closing speech to the Constituent Assembly (1949)

  We have it in our power to begin the world over again.

  Thomas Paine (1776)

  IN MARCH 1948, THE ruler of Sant, a princely state in western India, granted to some of his subjects (the jagirdars1) rights over certain forests. It was to be one of the concluding royal acts in Sant’s 700-year-long history. By June 1948, Sant had become one of the last princely states to accede to the newly independent Indian Republic.

  Within a year, the State of Bombay—with which Sant had merged—reneged on the grant.

  Various aggrieved parties (the respondents) moved court. After multiple rounds of litigation, the case came before a seven-judge bench of the Supreme Court in 1964.2 The State’s defence was simple: the Privy Council of the United Kingdom, which had been the highest court of appeal for colonial India, had repeatedly held that when a sovereign State acquires fresh territory, it could choose whether or not to recognize the rights enjoyed by the territory’s inhabitants under the previous regime. In acquiring Sant, the government had exercised its sovereign prerogative and decided not to recognize the forest grant. This was an ‘act of State’ that was immune from judicial challenge.

  The respondent-citizens objected strongly. They argued that ‘this rule was a relic of the imperialistic and expansionist philosophy of … British Jurisprudence, which is inconsistent with our constitutional set-up’.3 It was inconsistent ‘with the true spirit of our Constitution, which seeks to eschew all arbitrary authority, and establishes the rule of law by subjecting every executive action to the scrutiny of the courts’.4 The respondent-citizens invited the Supreme Court to break with the doctrines of the Privy Council, and to hold that the State could not simply wipe out their rights when it assumed sovereignty over the state of Sant.

  But by a wafer-thin 4–3 majority, the Supreme Court held in favour of the State. In his concurring opinion, Justice J.C. Shah addressed the constitutional argument of the respondent-citizens, and rejected it in the following words:

  There is no warrant for holding at the stroke of midnight of the 25th January, 1950, all our pre-existing political institutions ceased to exist, and in the next moment arose a new set of institutions completely unrelated to the past. The Constituent Assembly which gave form to the Constitution functioned for several years under the old regime, and set up the constitutional machinery on the foundations of the earlier political set up … the process was not one of destruction, but of evolution.5

  Justice Shah—like his colleagues in the majority—elected to follow the jurisprudence of the Privy Council, which had been ‘the law laid down and given effect to … until India attained independence.’6 In doing so, they overruled a judgement handed down by a five-judge bench of the Supreme Court, a decade before. In 1954, considering a very similar set of facts, Justice Vivian Bose had set his face firmly against the Privy Council’s ‘Act of State’ doctrine. As with the respondent-citizens before the Supreme Court in 1964, he had founded his argument in the moment of constitutional framing:

  In our opinion, the Constitution … blotted out in one magnificent sweep all vestiges of arbitrary and despotic power in the territories of India and over its citizens and lands and prohibited just such acts of arbitrary power as the State now seeks to uphold … the past was obliterated except where expressly preserved; at one moment of time the new order was born with its new allegiance springing from the same source for all, grounded on the same basis: the sovereign will of the peoples of India with no class, no caste, no race, no creed, no distinction, no reservation.7

  Ten years later, Justice Shah took direct issue with these words, labelling them ‘assumptions … not supported by history or by constitutional theory’.8 He insisted, instead, that the promulgation of the Constitution marked ‘merely [a] change in the form of Government’,9 which was nothing more than the ‘final step in the process of evolution towards self-government’.10 This was evident from ‘the continuance of the governmental machinery and of the laws of the Dominion’,11 even after the adoption of the new Constitution.

  The disagreement between Justice Shah and Justice Bose was not merely over whether the jurisprudence of the Privy Council should be followed, but over meaning—what was the meaning of the historical event that was the framing of the Indian Constitution? For Justice Shah, that event signifie
d continuity: marked by words and phrases such as ‘continuance’, ‘evolution’, ‘gave shape’, and ‘change in form’. For Justice Bose, on the other hand, it marked transformation: a past that was ‘blotted out’, ‘abandoned’, ‘obliterated’; and a ‘new order’ that was born.

  That is why Justice Shah took the unusual step of attacking Justice Bose for his understanding of ‘history and constitutional theory’. The judgements of Justices Shah and Bose reflected contesting views of history, and, based upon that history, contesting views about what the Constitution of India represented.

  And the difference mattered. It mattered vividly in 1954 and 1964 in determining the legality of the State’s refusal to recognize the pre-existing rights of its citizens. It had mattered before in 1950, when in its very first decision the Supreme Court had upheld the constitutionality of preventive detention laws that replicated their colonial antecedents. And it has mattered ever since, whether it is a landmark Supreme Court judgement upholding the fundamental right to privacy, or a barely noticed judgement of a high court applying the guarantee of gender equality to pregnancy-based discrimination. At the heart of every constitutional decision is the court’s assessment of what the Constitution means, why it exists in the shape and form that it does, and, above all, what injustices it is meant to remedy.

  This book advances Justice Bose’s vision of the Constitution, a vision that understood both the historical moment of framing, and the Constitution itself, as fundamentally transformative. But it is a vision that, notwithstanding the Supreme Court’s recent indications to the contrary,12 remains marginalized in a judicial history that has overwhelmingly endorsed Justice Shah’s view of conservatism and continuity.

  I. The Conservative Constitution

  In characterizing the Constitution as a conservative document, Justice Shah was not arguing in a vacuum. His references to the Constituent Assembly functioning under the old regime, to the earlier political set-up, and to a gradual evolution towards self-government, all tapped into an established intellectual tradition. This was the tradition of constitutional continuity.13

  The purveyors of this tradition could count among themselves an authority as eminent as B.N. Rau, the Constitutional Advisor, who began his book, India’s Constitution in the Making, by classifying the moment of Independence as ‘transference of power’.14 To justify the idiom of ‘transfer’ (as opposed to transformation), they could also call upon some formidable evidence.

  First, the Constituent Assembly itself was no revolutionary body. It derived its own authority from the Cabinet Mission Plan of 1946, and its members were elected under the limited suffrage provisions of the existing colonial legal framework.15

  Second, the Constituent Assembly borrowed heavily from the 1935 Government of India Act. As much as 75 per cent of the Indian Constitution was based on that colonial law.16 So deep was its influence that, in 1958, Justice Venkatarama Aiyar observed that the provisions of the Constitution must be interpreted in light of the Government of India Act, because:

  … a Federal Constitution had been established under the Government of India Act, 1935, and though that has undergone considerable change by way of repeal, modification and addition, it still remains the framework on which the present Constitution is built …17

  Where then was the break with the past, the rupture with the colonial regime, that Justice Bose had spoken about so lyrically?18

  And, in particular, the Constitution replicated some of the very provisions that had been the subject of bitter protests during the course of the freedom struggle. These included preventive detention, granting the political executive the power to pass ordinances bypassing legislative procedure, as well as the power to effectively suspend the legal system by declaring an Emergency.19 If the Constitution was meant to be transformative, surely it should have, at the very least, repudiated these hallmarks of arbitrary power instead of endorsing them?

  Instead, specific proposals to incorporate some core civil rights (such as a guarantee against arbitrary searches and seizures) were considered and rejected by the Assembly.20 All this has prompted scholars to argue that freedom was of secondary importance to the framers of the Constitution, relegated behind the overarching concerns of national integration and security, alleviation of economic and social ills, and India’s international standing.21

  Third, it is argued, even the system of government that the Constitution set up was neither new nor revolutionary. The Constitution established the Westminster system of parliamentary democracy,22 but this was no abrupt break with an absolutist past. From at least the first decade of the twentieth century, there had been an incremental evolution of representative systems in India, which the nationalist movement had extracted from the colonial regime inch by inch. Parliamentary democracy under the Constitution did not replace a tyranny, but a system of ‘responsible and limited’23 government, which had been functioning under the 1935 Act. This included provincial legislative councils and ministries elected on the basis of limited franchise, which had limited law-making powers, often subject to the overriding authority of the Governor-General.24 The representation might have been imperfect, but—so the argument goes—that was simply a question of degree.25 The Constitution only marked a culmination of this incremental, but inevitable, process. So, as Justice Shah had observed, ‘the process was not one of destruction but evolution.’26

  These arguments about the character of the Constitution are nested within a broader narrative that denies any transformative character to the freedom movement. The Indian National Congress, it is argued, often pursued a strategy of containment. It actively discouraged and repressed popular movements, including agrarian and labour struggles, which did not come under its umbrella.27 And Indian nationalism was itself a ‘derivative discourse’,28 mirroring colonial institutions rather than seeking to abolish or transform them. These included colonial legal, political, and administrative institutions29 and, indeed, the Constitution itself.30

  Notwithstanding this broader argument, it is important to differentiate the nationalist movement from the framing of the Constitution. The framing was the culmination of the nationalist movement, inspired by its values, and had many of the same protagonists. That does not mean, however, that the two were equivalent.31 Instead, I shall argue, there were discourses around liberty, equality, and fraternity which were part of the freedom struggle but were ignored, marginalized, or even rejected by the dominant nationalist movement. Nonetheless, they found their way into the Indian Constitution, and gave it its transformative character.

  To understand and incorporate them into our constitutional vision, however, will require an act of imagination. We need to go beyond the narrow canon that is invoked in defence of constitutional continuity, a canon that is limited to a surface reading of the constitutional text, a surface comparison with colonial legal instruments, and a surface contextualization of the pre- and post-constitutional political framework. It entails a broader canvas that includes, in the words of the civil rights lawyer K.G. Kannabiran:

  … the social history of the period preceding the Constitution … the struggles of the people who fought for freedom, the repressive legal structures on whose altars people were sacrificed and their dreams shattered … [and] the aspirations of the people to build a better society for themselves.32

  II. The Transformative Constitution

  The litany of arguments advanced by the defenders of colonial continuity are not definitive. The Constituent Assembly might have owed its legal existence to the colonial regime, but one of its first acts was to declare itself sovereign, and frame the Constitution on its own terms.33 In defending himself against the charge that he had simply copied the 1935 Act into the Constitution, Babasaheb Ambedkar, the principal draftsman of the Indian Constitution, insisted that it was only the ‘details of administration’ that had been borrowed.34 This was not an unfair argument.35 And while some measure of ‘responsible government’ existed in British India, it was scarcel
y comparable with the full-blooded parliamentary democracy, founded on universal adult franchise and equality of citizenship, which the Constitution brought into existence.36 As Uday Mehta points out, for all the surface similarities with the colonial past, there was much in the Constitution that was a radical departure:

  Here was a document which granted universal adult franchise in a country that was overwhelmingly illiterate; where, moreover, the conditionality of acquiring citizenship made no reference to race, caste, religion, or creed … which committed the state to being secular in a land that was by any reckoning deeply religious; which evacuated as a matter of law every form of prescribed social hierarchy under extant conditions marked by a dense plethora of entrenched hierarchies; that granted a raft of fundamental individual rights in the face of a virtually total absence of such rights … [and] most importantly, the Constitution created a federal democracy with all the juridical and political instruments of individual, federal, local, and provisional self-governance, where the nearest experience had been of imperial and princely authority.37

  These words lay the foundations for the argument of this book: that the Indian Constitution was a transformative constitution.38 But what did it seek to transform? To answer this question, I begin with Ruti Teitel’s important insight: ‘As a state undergoes political change, legacies of injustice have a bearing on what is deemed transformative.’39 I shall argue that there were two clear ‘legacies of injustice’ that the Constitution sought to repudiate and transform.

  First, the Constitution transformed the legal relationship between the individual and the State. It transformed the subjects of a colonial regime into citizens of a republic. It replaced the colonial logic of governing and administering a population40 with the democratic logic of popular sovereignty, public participation, and limited government. Apart from the guarantee of universal adult franchise and the structures of parliamentary democracy, this transformation was expressed through the fundamental rights that embodied citizenship and made democracy possible: the freedom of speech, expression, association, and conscience; the right to life and personal liberty; and the right to equality before law.41 These fundamental rights, alien to the 1935 Government of India Act, represented ‘a tectonic shift in constitutional philosophy’.42